A&G Holdings Pty Ltd v Shellharbour City Council

[2020] NSWLEC 1083

Land and Environment Court

New South Wales

Medium Neutral Citation:	A&G Holdings Pty Ltd v Shellharbour City Council [2020] NSWLEC 1083
Hearing dates:	16 and 17 October 2019
Date of orders:	24 February 2020
Decision date:	24 February 2020
Jurisdiction:	Class 1
Before:	Chilcott C
Decision:	The Court orders that: (1) The Applicant is granted leave to amend its development application and to rely on amended plans. (2) The Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application, as agreed or assessed, under s 8.15(3) of the Environmental Planning and Assessment Act 1979. (3) The appeal is upheld. (4) Development application DA579/2017, as amended, for demolition of existing structures and construction of 17 two-storey dwelling houses on an elevated pier platform and nine car parking spaces for visitors on an elevated driveway and pier platform, at 118 Koona Street, Albion Park, is determined by the grant of consent, subject to the conditions attached at Annexure ‘A’. (5) The exhibits are returned, except Exhibits B, F, & 5.
Catchwords:	DEVELOPMENT APPLICATION — Construction of residential dwellings — flood prone land — acceptability of flood risk — environmentally sensitive land — proximity to Lake Illawarra.
Legislation Cited:	Ashfield Local Environment Plan 2013 Coastal Management Act 2016 Environment Protection Biodiversity Conservation Act 1999 Environmental Planning and Assessment Act 1979 Fisheries Management Act 1994 Land and Environment Court Act 1979 Protection of the Environment Administration Act 1991 Shellharbour Local Environment Plan 2013 Standard Instrument—Principal Local Environmental Plan State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy No 14 - Coastal Wetlands State Environmental Planning Policy No 26 – Littoral Rainforests State Environmental Planning Policy No 71 – Coastal Protection Sydney Local Environment Plan 2012 Threatened Species Conservation Act 1995
Cases Cited:	Group HIS Pty Ltd v Inner West Council [2019] NSWLEC 1089 Michael Brown Planning Strategies v Wingecarribee Shire Council [2019] NSWLEC 1311 Neate v Shellharbour City Council [2007] NSWLEC 234 Neate v Shellharbour City Council [2007] NSWLEC 526 Neate v Shellharbour City Council [2007] NSWLEC 654 Palm Lake Works Pty Ltd v Ballina Council [2019] NSWLEC 1479 Season Group Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1354
Texts Cited:	Cardno, Lake Illawarra Floodplain Risk Management Study, (Report, 2012) Cardno, Lake Illawarra Flood Study (Report, July 2001) GHD, Horsley Creek Floodplain Risk Management Study and Plan, (Final Report, 2017) New South Wales Government, Floodplain Development Manual, (April 2005) Reinco Consulting, Horsley Creek Flood Study, (Final Report, 2011) Shellharbour City Council Floodplain Risk Management Development Control Plan 2006 Shellharbour Development Control Plan 2013 Susan, Butler (ed), Macquarie Dictionary (online ed, at 18 February 2020)
Category:	Principal judgment
Parties:	A&G Holdings Pty Ltd (Applicant) Shellharbour City Council (Respondent)
Representation:	Counsel: P Tomasetti SC (Applicant) M Harker (Solicitor) (Respondent)   Solicitors: DG Briggs and Associates (Applicant) Lindsay Taylor Lawyers (Respondent)
File Number(s):	2018/216499
Publication restriction:	Nil

Judgment

1. COMMISSIONER: A&G Holdings Pty Ltd (the Applicant) has appealed the refusal by Shellharbour City Council (the Respondent) of its development application DA 579/2017 for the demolition of existing structures and the construction of a 17 two-storey residential dwelling houses, along with nine visitor car parking spaces (the Proposed Development), at 118 Koona St, Albion Park (the Subject Site).

2. Development Application DA 579/2017 was lodged on 24 November 2017 and was exhibited between 25 January and 23 February 2018.

3. Council received five submissions in response to that exhibition within which the following concerns were expressed by objectors:

1. The scale of the Proposed Development, which was said to be inappropriate and which it was claimed represented an overdevelopment of the Subject Site;

2. concerns in relation to flooding on the Subject Site, along with maintaining access to and from the Subject Site during periods of flooding;

3. the volume of traffic that would be generated by the Proposed Development and its potential impact in terms of noise and light impacts on neighbouring properties and the adequacy of visitor car parking within the Proposed Development;

4. potential impacts of the Proposed Development on flora and fauna on the Subject Site; and

5. the management of waste generated by the Proposed Development.

4. On 28 February 2019 the appeal had been the subject of a conciliation conference between the Parties pursuant to the provisions of s 34 of the Land and Environment Court Act 1979 (LEC Act). I presided over that conciliation conference, during which an inspection of the Subject Site was undertaken by the Court with the Parties and their experts.

5. Objector submissions during the site view reflected the range of issues identified in submissions received by Council following exhibition of the Applicant’s Development Application (see above at [(2)]).

6. The conciliation conference that followed the site inspection did not result in the resolution of the contentions between the Parties, and the conciliation conference was terminated.

7. Subsequently, the Parties appeared before the Registrar for further directions, and at that appearance the Parties consented to me disposing of this matter at a hearing.

8. On 31 May 2019 the Applicant sought, and was granted, leave to amend its plans. The amended plans were re-advertised by the Respondent Council between 14 June and 11 July 2019, and one additional submission was received in response to that exhibition.

9. That submission, from Ms Pauline Thomson, raised similar issues to those identified above at [(2)], along with concerns relating to pedestrian safety and the import of fill onto the Subject Site.

10. Prior to the hearing, the Respondent advised that, following notification to objectors of the hearing date, no objectors had sought to make further representations to the Court in relation to the appeal, and so a further site inspection was not undertaken prior to the hearing commencing at Court.

11. The appeal is made pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (EP&A Act).

Background

12. The Subject Site is:

1. located within the bulb of a cul-de-sac. Its north-eastern and western boundaries adjoin a single dwelling and multi dwelling housing respectively. The south and south-eastern boundary is the centre line of Horsley Creek;

2. irregular in shape and has a land area of 1.080 ha. The Koona Street frontage has a width of 9m inclusive of a 4m wide right of carriageway. The northern side boundary has a dimension of 111m, the western side boundary 25m and the perimeter of the top of bank approximates 57.8m;

3. substantially flat with minor fall to the creek. For example, along the length of the northern boundary, the Site’s western (Koona Street) end has a level of 1.85 metres AHD (Australian Height Datum) and toward its eastern end a level of 1.29m AHD, with a top of bank level of 0.52m AHD;

4. is subject to a 1:100 ARI (Average Recurrence Interval) flood event, the height of which is 2.3m AHD;

5. largely covered with vegetation with some cleared areas along the length of the western boundary and around the cottage. There is also a cleared area along part of the northern boundary;

6. mapped as Environmentally Sensitive Land under Shellharbour Local Environmental Plan 2013 (SLEP 2013), SLEP 2013 and contains vegetation identified as Endangered Ecological Communities. These Communities include Swamp Oak Floodplain Forest and Saltmarsh. Both Swamp Oak Floodplain Forest and Saltmarsh are listed under the Threatened Species Conservation Act 1995 and under the Environment Protection Biodiversity Conservation Act 1999. Saltmarsh is also listed under the Fisheries Management Act 1994. In addition, Brachychiton populneus, a regionally rare species, has been recorded on the Subject Site;

7. mapped under SLEP 2013 as having class 1 and class 2 Acid Sulfate Soils;

8. mapped within the Illawarra Food Study as containing land that is both high flood risk and medium flood risk. The mapping of flood risk of the Subject Site within the Illawarra Food Study does not change when the impacts of projected sea level rise in either 2050 or 2100 are considered;

9. mapped as a part-High and part-Medium Flood Risk Precinct in the Shellharbour Development Control Plan 2013 (SDCP). The SDCP defines a:

1. High Flood Risk Precinct as “the area within the envelope of land subject to high hydraulic hazard in the 100-year ARI flood event” where “high flood damage, potential risk to life and evacuation problems would be anticipated or development would significantly and adversely affect flood behaviour; and

2. Medium Flood Risk Precinct as “land below the 100 year ARI flood level (plus 0.5m freeboard) that is not within the High Flood Risk Precinct. It is land subject to low hydraulic hazard (in accordance with the provisional criteria outlined in the Floodplain Development Manual). In this precinct there would still be a significant risk of flood damage, but these damages can be minimised by the application of appropriate development controls

10. Located within the Coastal Zone as defined under State Environmental Planning Policy No 71 – Coastal Protection. The Subject Site is a sensitive coastal location as it is within 100m of the water’s edge of a coastal lake, that being Lake Illawarra;

11. identified as fish habitat under the Fisheries Management Act 1994;

12. mapped as Aboriginal heritage under the SLEP;

13. falls between the Obstacle Height Limitation Lines of RL 20 metres AHD - RL 30 metres AHD. The Obstacle Height Limitation (Transition) Surfaces relate to the operations of the Illawarra Regional Airport; and

14. burdened with a right of carriageway 4m x 7m over the south western corner to benefit Lot 2, no. 116A Koona Street.

13. A previous consent had been granted by the Court in 2007 by then Senior Commissioner Roseth for a seniors living development in the matter of Neate v Shellharbour City Council [2007] NSWLEC 654 (hereafter referred to as ‘Neate 1’). That consent was not activated and the proposed development that was the subject of the appeal in Neate 1 did not proceed.

14. The Subject Site is zoned R2 Low Density Residential. The Applicant’s Proposed Development is a permissible form of development within that zone (see below at [20]).

The Proposed Development

15. The proposed development, as amended, now includes:

1. earthworks, including the removal of some native vegetation on the Subject Site;

2. demolition of existing structures on the Subject Site, including a building identified as Slater’s Cottage and the remains of a small shed and outdoor WC;

3. a proposal that all dwelling construction would be on an elevated platform constructed at an elevation of 3.15m AHD;

4. construction of 17 two-storey dwellings, each containing three bedrooms, on the elevated platform;

5. construction of nine visitor car parking spaces on the elevated driveway and platform; and

6. construction of a driveway and vehicular manoeuvring area on the elevated platform.

Statutory Considerations

Environmental Planning and Assessment Act 1979

16. The objects of the of the Environmental Planning and Assessment Act 1979 (EP&A Act) are as follows:

(a) to promote the social and economic welfare of the community and a better environment by the proper management, development and conservation of the State’s natural and other resources,

(b) to facilitate ecologically sustainable development by integrating relevant economic, environmental and social considerations in decision-making about environmental planning and assessment,

(c) to promote the orderly and economic use and development of land,

(d) to promote the delivery and maintenance of affordable housing,

(e) to protect the environment, including the conservation of threatened and other species of native animals and plants, ecological communities and their habitats,

(f) to promote the sustainable management of built and cultural heritage (including Aboriginal cultural heritage),

(g) to promote good design and amenity of the built environment,

(h) to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants,

(i) to promote the sharing of the responsibility for environmental planning and assessment between the different levels of government in the State,

(j) to provide increased opportunity for community participation in environmental planning and assessment.

17. The EP&A Act, adopts the definition of ecologically sustainable development contained within s 6(2) of the Protection of the Environment Administration Act 1991 (POEO Act), which is:

(2) For the purposes of subsection (1) (a), ecologically sustainable development requires the effective integration of social, economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs:

(a) the precautionary principle—namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii) an assessment of the risk-weighted consequences of various options,

(b) inter-generational equity—namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,

(c) conservation of biological diversity and ecological integrity—namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,

(d) improved valuation, pricing and incentive mechanisms—namely, that environmental factors should be included in the valuation of assets and services, such as:

(i) polluter pays—that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,

(ii) the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,

(iii) environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems

18. Section 4.15(1) of the EP&A Act requires that, in determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

(a) the provisions of:

(i) any environmental planning instrument, and

(ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii) any development control plan, and

(iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, and

(iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and

that apply to the land to which the development application relates,

(b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c) the suitability of the site for the development,

(d) any submissions made in accordance with this Act or the regulations,

(e) the public interest.

19. Section 4.15(3A) of the EP&A Act further provides that:

If a development control plan contains provisions that relate to the development that is the subject of a development application, the consent authority:

(a) if those provisions set standards with respect to an aspect of the development and the development application complies with those standards—is not to require more onerous standards with respect to that aspect of the development, and

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development, and

(c) may consider those provisions only in connection with the assessment of that development application.

Shellharbour Local Environment Plan 2015

20. Development on the Subject Site is subject to the provisions of the SLEP, and under the provisions of cl 2.1 of SLEP it is zoned R2 Low Density Residential.

21. The objectives of the R2 zone are to:

• To provide for the housing needs of the community within a low density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

22. Within this R2 zone, a residential development, such as is proposed by the Applicant, is a permissible form of development.

23. The following further provisions of SLEP are also of relevance in this appeal:

1. Clause 6.3, concerning flood planning, applies to land at or below the flood planning level:

1. the objectives of which are set out in subcl 6.3(1), as follows:

• to minimise the flood risk to life and property associated with the use of land,

• to allow development on land that is compatible with the land’s flood hazard, taking into account projected changes as a result of climate change,

• to avoid significant adverse impacts on flood behaviour and the environment.

2. and which otherwise provides as follows:

(2) This clause applies to land at or below the flood planning level.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development—

(a) is compatible with the flood hazard of the land, and

(b) will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties, and

(c) incorporates appropriate measures to manage risk to life from flood, and

(d) will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, and

(e) is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding.

(4) A word or expression used in this clause has the same meaning as it has in the Floodplain Development Manual (ISBN 0 7347 5476 0) published by the NSW Government in April 2005, unless it is otherwise defined in this clause.

(5) In this clause—

flood planning level means the level of a 1:100 ARI (average recurrent interval) flood event plus 0.5 metre freeboard.

2. Clause 5.5, concerning development within the coastal zone, was repealed under the NSW Government’s Coastal Land Reforms in 2018, continues to apply to the Proposed Development which was lodged in late 2017. State Environmental Planning Policy (Coastal Management) 2018 (Coastal Management SEPP), which was introduced under the 2018 reforms and which commenced on 3 April 2018, consolidated and repealed the provisions of various instruments, including cl 5.5 of the Standard Instrument. However, cl 5.5 of SLEP continues to apply to the Proposed Development as a consequence of savings provisions within cl 21(1) of the Coastal Management SEPP (see below at [24]).

1. Clause 5.5 of SLEP has the following objectives:

(a) to provide for the protection of the coastal environment of the State for the benefit of both present and future generations through promoting the principles of ecologically sustainable development,

(b) to implement the principles in the NSW Coastal Policy, and in particular to:

(i) protect, enhance, maintain and restore the coastal environment, its associated ecosystems, ecological processes and biological diversity and its water quality, and

(ii) protect and preserve the natural, cultural, recreational and economic attributes of the NSW coast, and

(iii) provide opportunities for pedestrian public access to and along the coastal foreshore, and

(iv) recognise and accommodate coastal processes and climate change, and

(v) protect amenity and scenic quality, and

(vi) protect and preserve rock platforms, beach environments and beach amenity, and

(vii) protect and preserve native coastal vegetation, and

(viii) protect and preserve the marine environment, and

(ix) ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and

(x) ensure that decisions in relation to new development consider the broader and cumulative impacts on the catchment, and

(xi) protect Aboriginal cultural places, values and customs, and

(xii) protect and preserve items of heritage, archaeological or historical significance.

2. and otherwise provides as follows:

(2) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority has considered:

(a) existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) with a view to:

(i) maintaining existing public access and, where possible, improving that access, and

(ii) identifying opportunities for new public access, and

(b) the suitability of the proposed development, its relationship with the surrounding area and its impact on the natural scenic quality, taking into account:

(i) the type of the proposed development and any associated land uses or activities (including compatibility of any land-based and water-based coastal activities), and

(ii) the location, and

(iii) the bulk, scale, size and overall built form design of any building or work involved, and

(c) the impact of the proposed development on the amenity of the coastal foreshore including:

(i) any significant overshadowing of the coastal foreshore, and

(ii) any loss of views from a public place to the coastal foreshore, and

(d) how the visual amenity and scenic qualities of the coast, including coastal headlands, can be protected, and

(e) how biodiversity and ecosystems, including:

(i) native coastal vegetation and existing wildlife corridors, and

(ii) rock platforms, and

(iii) water quality of coastal waterbodies, and

(iv) native fauna and native flora, and their habitats,

can be conserved, and

(f) the cumulative impacts of the proposed development and other development on the coastal catchment.

(3) Development consent must not be granted to development on land that is wholly or partly within the coastal zone unless the consent authority is satisfied that:

(a) the proposed development will not impede or diminish, where practicable, the physical, land-based right of access of the public to or along the coastal foreshore, and

(b) if effluent from the development is disposed of by a non-reticulated system, it will not have a negative effect on the water quality of the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and

(c) the proposed development will not discharge untreated stormwater into the sea, or any beach, estuary, coastal lake, coastal creek or other similar body of water, or a rock platform, and

(d) the proposed development will not:

(i) be significantly affected by coastal hazards, or

(ii) have a significant impact on coastal hazards, or

(iii) increase the risk of coastal hazards in relation to any other land.

3. Clause 6.1, concerning acid sulfate soils, provides as follows:

(1) The objective of this clause is to ensure that development does not disturb, expose or drain acid sulfate soils and cause environmental damage.

(2) Development consent is required for the carrying out of works described in the Table to this subclause on land shown on the Acid Sulfate Soils Map as being of the class specified for those works.

Class of land

Works

1

Any works.

2

Works below the natural ground surface.

Works by which the watertable is likely to be lowered.

3

Works more than 1 metre below the natural ground surface.

Works by which the watertable is likely to be lowered more than 1 metre below the natural ground surface.

4

Works more than 2 metres below the natural ground surface. Works by which the watertable is likely to be lowered more than 2 metres below the natural ground surface.

5

Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.

(3) Development consent must not be granted under this clause for the carrying out of works unless an acid sulfate soils management plan has been prepared for the proposed works in accordance with the Acid Sulfate Soils Manual and has been provided to the consent authority.

(4) Despite subclause (2), development consent is not required under this clause for the carrying out of works if:

(a) a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works, and

(b) the preliminary assessment has been provided to the consent authority and the consent authority has confirmed the assessment by notice in writing to the person proposing to carry out the works.

(5) Despite subclause (2), development consent is not required under this clause for the carrying out of any of the following works by a public authority (including ancillary work such as excavation, construction of access ways or the supply of power):

(a) emergency work, being the repair or replacement of the works of the public authority, required to be carried out urgently because the works have been damaged, have ceased to function or pose a risk to the environment or to public health and safety,

(b) routine maintenance work, being the periodic inspection, cleaning, repair or replacement of the works of the public authority (other than work that involves the disturbance of more than 1 tonne of soil),

(c) minor work, being work that costs less than $20,000 (other than drainage work).

(6) Despite subclause (2), development consent is not required under this clause to carry out any works if:

(a) the works involve the disturbance of less than 1 tonne of soil, and

(b) the works are not likely to lower the watertable.

4. Clause 6.4, concerning stormwater, and provides as follows:

6.4 Stormwater management

(1) The objective of this clause is to minimise the impacts of urban stormwater on the land to which the development applies, adjoining properties, native bushland and receiving waters.

(2) This clause applies to all land in residential, business and industrial zones.

(3) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that the development:

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

5. Clause 6.5, concerning terrestrial biodiversity, and provides as follows:

(1) The objective of this clause is to maintain terrestrial biodiversity by:

(a) protecting native fauna and flora, and

(b) protecting the ecological processes necessary for their continued existence, and

(c) encouraging the conservation and recovery of native fauna and flora and their habitats.

(2) This clause applies to land identified as “Environmentally Sensitive Land” on the Terrestrial Biodiversity Map.

(3) Before determining a development application for development on land to which this clause applies, the consent authority must consider:

(a) whether the development is likely to have:

(i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and

(ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and

(iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and

(iv) any adverse impact on the habitat elements providing connectivity on the land, and

(b) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.

(4) Development consent must not be granted to development on land to which this clause applies unless the consent authority is satisfied that:

(a) the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or

(b) if that impact cannot be reasonably avoided by adopting feasible alternatives—the development is designed, sited and will be managed to minimise that impact, or

(c) if that impact cannot be minimised—the development will be managed to mitigate that impact.

6. Clause 6.9, concerning essential services, and which provides:

Development consent must not be granted for development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(a) the supply of water,

(b) the supply of electricity,

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

State Environmental Planning Policy (Coastal Management) 2018

24. Coastal Management SEPP consolidates into one integrated policy the provisions of the former SEPP 14 (Coastal Wetlands), SEPP 26 (Littoral Rainforests) and SEPP 71 (Coastal Protection), including the provisions of cl 5.5 of the Standard Instrument – Principal Local Environmental Plan.

25. The Coastal Management SEPP commenced on 3 April 2018 and gives effect to the objectives of the Coastal Management Act 2016 from a land use planning perspective, by specifying how development proposals are to be assessed if they fall within the coastal zone.

26. Clause 21 of Coastal Management SEPP provides certain savings and transitional arrangements, including as follows:

21 (1) The former planning provisions continue to apply (and this Policy does not apply) to a development application lodged, but not finally determined, immediately before the commencement of this Policy in relation to land to which this Policy applies.

27. The Applicant’s Development Application was lodged on 24 November 2017, and before the commencement of the Coastal Management SEPP, and so the provisions of cl 5.5 of SLEP, continue to apply to the Proposed Development in this appeal.

Shellharbour Development Control Plan 2013

28. The SDCP came into force on 2 August 2017, and development on the Subject Site is subject to the provisions of SDCP, the purpose of which is to provide guidance on the following matters to the persons proposing to carry out development and to the consent authority for any such development:

a) giving the effect to the aims of any environmental planning instrument that applies to the development,

b) facilitating development that is permissible under any such instrument,

c) achieving the objectives of land zones under any such instrument.

29. The following provisions of SDCP are of relevance in this appeal:

1. Chapter 24, concerning floodplain risk and management, and which, along with Appendix 9 of SDCP, applies to all flood prone land in the Shellharbour Local Government Area (LGA). It has the following objectives:

1. Minimise the potential impact of development and other activity upon waterway corridors.

2. Increase public awareness of the hazard and extent of land affected by all potential floods, including floods greater than the 100 year average recurrence interval (ARI) flood such as the Probable Maximum Flood (PMF) and to ensure essential services and land uses are planned in recognition of all potential floods.

3. Inform the community of Council's Plan for the use and development of flood prone land.

4. Reduce the risk to human life and damage to property caused by flooding through controlling development on land affected by potential floods.

5. Provide detailed controls for the assessment of applications lodged in accordance with the EP&A Act on land affected by potential floods.

6. Provide guidelines, for the use and development of land subject to all potential floods in the floodplain, which reflect the probability of the flood occurring and the potential hazard within different areas.

7. Apply a “merit-based approach” to all development decisions which take account of social, economic and ecological as well as flooding considerations.

8. To control development and activity within each of the individual floodplains within the LGA having regard to the characteristics and level of information available for each of the floodplains.

9. Deal equitably and consistently with applications for development on land affected by potential floods, in accordance with the principles contained in the Floodplain Development Manual as amended, issued by the NSW Government.

10. Restore / rehabilitate the riparian zone by returning as far as practicable the vegetation, geomorphic structure, hydrology and water quality of the original (pre European) condition of the stream.

11. Integrate the management of riparian land with floodplain risk management by assuming the riparian land is fully vegetated when developing flood models for analysis of flood risk.

2. Appendix 9, concerning floodplain risk management, includes general provisions for development conceptualisation/assessment relating to all of the catchments and specific provisions relating to individual catchments, including:

1. Section A9.1 which provides criteria for determining applications, and more specifically provides:

The criteria for determining applications for proposals potentially affected by flooding are structured in recognition that different controls are applicable to different land uses and levels of potential flood inundation and hazard.

A9.1.1 The procedure to determine what controls apply to proposed development involves:

a. firstly, identifying the land use category (Table A9.2) of the development. See heading Land use categories table

b. secondly, determine which floodplain and which part of that floodplain the land is located within. Refer to the NSW Government Floodplain Development Manual.

c. then apply the controls outlined under the heading, Development controls.

2. Section 9.2 which identifies three types of flood risk precincts, and the basis for determining whether an area is a high, medium or low flood risk precinct.

3. Section 9.3 which identifies development controls that apply to all land proposed to be developed within a flood risk precinct, and which makes reference to Schedules 1 and 2 within Table 9.3, in relation to which:

1. the controls in Schedule 1 apply to developments within the Horsley Creek Floodplain; and

2. the controls in Schedule 2 apply to developments in the Lake Illawarra Floodplain;

3. the controls in both schedules apply to the Proposed Development in the Subject Site because it is located in both the Horsley Creek Floodplain and the Lake Illawarra Floodplain; and

4. both schedules provides specific controls for developments proposed on land mapped as medium flood risk under the following categories:

• floor level;

• building components;

• structural soundness;

• flood affectation; and

• evacuation.

5. neither schedule provides any specific controls for residential development on land that is mapped as a high flood risk, because both schedules identify residential development on high flood risk land as an “unsuitable” land use.

Contentions

30. At the commencement of the hearing the Respondent observed that the appeal centred on one principal contention, that being whether the Applicant’s Proposed Development was compatible with the flood risk and flood hazard associated with the Subject Site.

31. In addressing this issue, the Parties agreed that the principal development standards and controls of relevance in the appeal are those provided within:

1. cl 6.3 of SLEP, concerning flood planning (see above at [23(1)]); and

2. chapter 24 and Appendix 9 of SDCP, concerning floodplain risk management (see above at [29(1)]) and [29(2)], respectively;

Neate decisions

32. As noted above at [13], a previously proposed development on the Subject Site had been considered by Senior Commissioner Roseth, as he was then, in the matter of Neate 1 in which the then Senior Commissioner had granted consent to a development application for a seniors living development on the Subject Site.

33. That judgment had been issued following remittal of the matter back to the Senior Commissioner following an appeal against his initial grant of the consent for that development in Neate v Shellharbour City Council [2007] NSWLEC 234 (referred to hereafter as the Original Neate decision).

34. In Neate v Shellharbour City Council [2007] NSWLEC 526, referred to hereafter as ‘Neate 2’, Justice Pain said that the Senior Commissioner had erred in his decision to grant consent to the proposed development in the Original Neate decision because:

1. the Senior Commissioner failed to give proper, genuine and real consideration to the Shellharbour City Council Floodplain Risk Management Development Control Plan 2006 (DCP);

2. the Senior Commissioner misunderstood, and misdirected himself on, the application of the DCP to the proposed development.

35. More specifically, Pain J found (at [24]) that:

“The DCP, which I accept was clearly acknowledged in the judgment as to its effect, was not treated by the Senior Commissioner as a focal point of his decision. That incorrect approach is reflected in the question posed in [31] and the approach in [32] of the judgment.”

36. In his judgement on remission, the former Senior Commissioner noted, and followed the advice of the Parties, (at [12] in Neate 1) that:

“Three important matters are common ground between the parties. First, I am required to make the DCP the fundamental element or focal point of my assessment of the risk from flooding. Second, the fact that the DCP’s control identifies seniors living as an unsuitable land use for the site should be given significant, though not determinative weight. Third, the DCP’s control does not, of and by itself, lead to the refusal of the application.”

37. In this appeal I adopt an assessment pathway in respect the SDCP that is consistent with the findings of Pain J in her judgment in the appeal in Neate 2, and the considerations of Roseth SC in Neate 1, including his finding that:

“the DCP’s control does not, of and by itself, lead to the refusal of the application”.

38. That is, notwithstanding that SDCP identifies residential development as an unsuitable land use on land mapped as being a high flood risk, this is not a reason for refusal of the application, and the Court should set aside that control and consider whether the Proposed Development provides an alternative solution that would meet the objects of the relevant controls, consistent with the requirements of s 4.15(3A) of the EP&A Act (see above at [19]). In the appeal that now comes before me, the relevant controls are those in Appendix 9 and Chapter 24 of SDCP.

Questions for resolution in this appeal

39. Having considered the submissions of the Parties in opening, together with their advice flowing from the decisions of Roseth SC and Pain J in Neate 1 and Neate 2, I propose to address the contentions in this appeal through consideration of the following questions:

1. Does the Proposed Development achieve the objects of the standards within Chapter 24 and Appendix 9 of SDCP (see above at [29(1)] and [29(2)], respectively)?

2. Does the Proposed Development satisfy the provision of cl 6.3 of SLEP (see above at [23(1)])?

3. Does the Proposed Development satisfy other relevant provisions of SLEP, in particular, the provisions of cl 5.5, 6.1, 6.4, 6.5 and 6.9 of SLEP?

40. In short, the answer to each of these questions is that, in my assessment, the Proposed Development:

1. does achieve the objects of the controls in both Chapter 24 and Appendix 9 of SDCP;

2. does satisfy the provisions of cl 6.3 of SLEP; and

3. does satisfy the other relevant provisions of SLEP.

41. I provide my reasons for these findings below.

42. The Court was assisted in its consideration of these questions by the expert evidence of engineering experts, Mr Stephen Faulkner, for the Applicant, and Mr Adam De Clouett, for the Respondent.

43. Prior to my consideration of each of the questions identified above at [39], and my reasons for my findings above at [40], it is useful to summarise relevant evidence of the experts, along with agreed facts and points of difference in relation to that evidence.

Evidence of the engineering experts

44. The engineering experts provided evidence in relation to the following matters:

1. the effect of flooding and flood behaviour on access to and from the Subject Site at the so-called Koona Street sag point, in the circumstances of the following two flooding regimes in Horsley Creek:

1. the 1:100 ARI flood event;

2. the Probable Maximum Flood (PMF) event.

2. the effect of a combined flood event in Horsley Creek catchment and Lake Illawarra catchment;

45. The Court was provided with modelling of a range of flood scenarios for the Subject Site, and in relation to the Koona Street sag point, during flood events in Horsley Creek, including:

1. the 1:100 ARI flood event under current climatic conditions;

2. the 1:100 ARI flood event under the projected influence of climate change (reflecting a sea level rise and increased precipitation) in the years 2050 and at 2100; and

3. the PMF event.

The effect of flooding and flood behaviour on access to and from the Subject Site at the so-called Koona Street sag point during a flood in Horsley Creek

46. The flood modelling tendered as evidence during the hearing confirmed that the during 1:100 ARI flood event, the water at the Koona Street sag would be 0.75m deep, and it would have a velocity of 0.1m/s. Further, the experts agreed that:

1. these conditions would represent a low hazard environment;

2. in these conditions, an adult could safely wade though the waters at the Koona Street sag point to exit the Subject Site via Koona Street;

3. at this level a standard ‘Sprinter’ model ambulance vehicle, as is operated by the New South Wales (NSW) Ambulance Service, could safely access and depart the Subject Site because the engine air intake of this vehicle is located 1m above ground level, and the vehicle’s 2.5 tonne weight would ensure that it remained stable in those waters; and

4. as a consequence, it could be concluded that, during the 1:100 ARI flood event, future residents of the Applicant’s Proposed Development would be able to exit the Subject Site safely, and an ambulance could gain access to the Subject Site, if required.

47. The expert engineers also agreed that:

1. their shared principal concern related to the flood modelling of the Koona Street sag point under both climate change scenarios, at 2050 and 2100 (projected sea level rise plus a 20% increase in rain), as well as under PMF conditions, as, in these circumstances, access to and from the Subject Site by a standard ‘Sprinter’ vehicle as operated by the NSW Ambulance Service would be compromised, because the depth of water at the Koona Street sag point would exceed 1m.

2. in the climate change modelled conditions (1:100 ARI event with sea level rise, and then with an increase in rainfall of 20%) residents would have more than 12 hours and up to 15 hours in which to evacuate the Subject Site via Koona Street, before the Koona Street sag point became flooded and evacuation from the Subject Site would be compromised.

3. under the modelled PMF conditions, evacuation from the Subject Site would be also possible for a period of up to 16 hours, but thereafter the depth of water at the Koona Street sag point, as well as on the Subject Site, would be such that evacuation would not be possible and any residents remaining on the Subject Site would need to shelter in place.

4. in circumstances where future residents elected to stay on the Subject Site during a flood that reflected the PMF event, flood waters would rise and residents would be expected to shelter in place on the upper floor level of the Proposed Development.

5. Residents elected to shelter in place during the PMF event, they would remain isolated for up to between 13 and 14 hours.

The effect of a combined flood event in Horsley Creek catchment and Lake Illawarra catchment on the Subject Site;

48. The evidence of the experts in relation to the effect of a combined flood event in Horsley Creek catchment and Lake Illawarra catchment on the Subject Site can be summarised as follows:

1. because of its size, the effects of flooding in Lake Illawarra would be slower to influence the Subject Site than would the effects of flooding in the Horsley Creek catchment;

2. during the 1:100 ARI flood event in Lake Illawarra and Horsley Creek, the Subject Site would flood to a level of 2.3m ARH, and in these circumstances the dwellings would remain above the flood waters as the Proposed Development is proposed to be build an a level of 3.15m ARH;

3. during the 1:100 ARI event, modelled to take account of climate change scenarios flood waters would also rise to a level of 2.3m, and again, in these circumstances, the dwellings would remain above the flood waters as the Proposed Development is proposed to be built to an elevated pier structure at a level of 3.15m AHD;

4. during the PMF event, there would be an opportunity for residents of the Subject Site to evacuate the Subject Site for a period of up to 16 hours. However, if residents did not evacuate, or were unable to evacuate the Applicant’s Proposed Development, they would be required to shelter in a place on the second floor of the proposed dwellings, as these areas are proposed be built at a level above the modelled PMF event; and

5. if Residents elected to remain on the Subject Site to shelter in place during the PMF, they would need to remain there for up to 24 hours.

Differences in the opinion of the expert engineers

49. Notwithstanding their areas of factual agreement in relation to the modelling of various flooding scenarios within the Horsley Creek and Lake Illawarra catchments, the engineering experts differed in their interpretations of these data in relation to the controls in SDCP and development standards within SLEP.

50. The most relevant areas of difference in the opinions of the experts can be summarised as follows:

1. the experts disagreed as to the acceptability of the Applicant’s proposal that future residents of the Proposed Development should be required to shelter in place for periods of up to 13 or 14 hours, and in relation to which:

1. Mr Faulkner was of the opinion that, this was acceptable;

2. Mr De Clouett was of the opinion that while this was acceptable for short periods associated with the 1:100 ARI flood event, it was not acceptable for longer period such as might be associated with the PMF event;

2. the experts disagreed in relation to whether essential services would be maintained during flood events, in relation to which:

1. Mr De Clouett said that he held concerns in relation to the availability of telecommunications, power and sewer services during flood events; while

2. Mr Faulkner said that, in his opinion, the provision of water supply would not be compromised during flood events, and:

1. mobile phone coverage would remain available, and could be relied upon in the event of flooding. He noted that the emergency services now utilise text message alerts as a means of providing advice to residents in the event of an emergency;

2. power supplies would be maintained as power would be provided to the Proposed Development via power poles to ensure that power supply wires were above flood levels, and that the substation would also be located above the 2.8m AHD flood planning level for the Subject Site; and

3. the availability of a toilet in the upstairs levels of each of the dwellings would ensure that there was adequate ‘head’ to ensure the functionality of the toilet and sewer systems during a flood event.

51. Having review the evidence of the engineering experts, I will now consider the questions identified at [39].

Does the Proposed Development achieve the objects of the standards within Chapter 24 and Appendix 9 of SDCP, respectively?

52. In addressing this question, I will first consider the objects of Appendix 9 of SDCP before then considering those of Chapter 24.

The Objects of Appendix 9

53. As noted above, the provisions of 9.3 of Appendix 9, including those in Schedule 1 and 2 of Table 9.3 of SDCP, are clear that land that is mapped within the Illawarra Flood Study as having a high flood risk, is unsuitable for residential development.

54. Notwithstanding this, the Subject Site, including those lands mapped as high flood risk and considered unsuitable for residential development, is zoned R2 Lowe Density Residential, and a residential development such as is proposed by the Applicant is a permissible use of the land in this zone.

55. As the zoning of the Subject Site within SLEP was given effect after the completion of the Lake Illawarra Floodplain Risk Management Study in 2012, the Lake Illawarra Floodplain Risk Management Plan, also in 2012, and the Horsley Creek Flood Study in 2011, it is reasonable to conclude that Council was aware of these studies at the time that SLEP was made, and at which time the Subject Site was zoned R2 Low Density Residential.

56. I conclude that Council must consider that in certain circumstances some suitable form of low density residential development, including on the land mapped as having a high flood risk, must be possible on the Subject Site.

57. Further, as discussed above (see [32] to [36]), in Neate 1 and Neate 2, Roseth SC and Pain J, respectively, adopted an approach that required the DCPs controls that identified the Subject Site’s unsuitability for residential development should be set aside, and the proposed development should be assessed on its merits against the objectives of the DCP controls. These decisions pre-dated the inclusion within the EPA Act of s 4.15(3A) which now requires that:

(b) if those provisions set standards with respect to an aspect of the development and the development application does not comply with those standards—is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development…

58. This conclusion is consistent with the approach adopted by Roseth SC in Neate 1 (at [16]) in which he stated that:

“Clause 2.3 refers to high flood risk precincts. It states: “only in exceptional circumstance will development be permitted in this precinct”. This suggests that development is not precluded under all circumstances. In my opinion, the numerous safeguards that this proposal incorporates meet the requirement of exceptional circumstances. The proposal is therefore consistent with cl 2.3.”

59. In the current appeal, the equivalent clause within SDCP to the previous cl 2.3 is section A9.2, which states that high flood risk land is defined as an:

“…. area within the envelope of land subject to a high hydraulic hazard (as defined with the provisional criteria outlined in the Floodplain Development Manual) in 100 year ARI flood event. The high flood risk precinct is where high flood damage, potential risk to life and evacuation problems would be anticipated or development would significantly and adversely effect (sic) flood behaviour. Only in exceptional circumstances will development be permitted in this precinct. In this precinct, there would be a significant risk of flood damages without compliance with flood related building and planning controls.”

60. Given my conclusion above at [54], along with my observation at [59], I must also consider whether the Applicant’s Proposed Development is such that it meets the requirement of “exceptional circumstances” and thus be consistent with the provisions of section A9.2 of SDCP.

61. In Neate 1, Roseth SC considered the use of the expression ‘exceptional circumstances’ within the DCP, and in that case concluded that it related to the design of the Proposed Development, confirmed when he said (at [16]) that “the numerous safeguards that this proposal incorporates meet the requirement of exceptional circumstances”.

62. In my opinion, this is consistent with the definition of “exceptional” within the Macquarie Dictionary, which defines “exceptional” as follows:

1. forming an exception or unusual instance; unusual; extraordinary.

2. extraordinarily good, as of a performance or product.

3. extraordinarily skilled, talented, or clever.

63. Therefore, I view that this task is best approached by asking if the design of the Proposed Development (the product) is so extraordinarily good, skilled, talented or clever that it achieves the objects of section 9.3 of Appendix A. The assumption here, which I acknowledge, is that in otherwise unexceptional circumstances a proposed development on high flood risk land should not be capable of achieving those objects.

64. The objects of section 9.3 were provided above at [29(2)(c)], and in this appeal the Parties:

1. did not contend that the Proposed Development was inconsistent with Objectives 1, 4 and 5, but

2. differed in their assessment as to whether the proposed Development achieved Objectives 2,3 and 6.

65. Further, section 9.3 also provides six performance criteria (identified with SDCP as A9.3.2 to A9.3.7, also identified above at [29(2)(c)]), of which the Parties identified three that were of relevance to the Proposed Development, and its satisfaction of the Objectives in section 9.3.

66. The three relevant performance criteria (PC), and my assessment of the Proposed Development against those criteria, are as follows:

1. PC A9.3.2 requires that the proposed development should not result in any increased risk to human life, and I am of the view that it should not because:

1. the Parties and their experts agreed that, because the Proposed Development would be constructed on an elevated platform at ADH 3.15m, it would not be directly affected by either the 1:100 ARI event, nor a 1:100 ARI event modelled to reflect the effects of climate change, including sea level rise scenarios, with precipitation increases, associated with changes in climate in the years 2050 and 2100;

2. the Parties agreed that future residents would have at least 12 hours, and probably more, to evacuate the Subject Site prior to the effects of a 1:100 ARI event, and that this would be substantially the same time under likely under climate change scenario modelling;

3. while it could be argued, and indeed was submitted by the Applicant, that any development on the Subject Site would place some people in the development on land that had a high flood risk, and thus creating some increased risk to life, in my assessment, for reasons provided above at [a] and [b], the design of the Proposed Development is such that these risks have been mitigated, and thus the provisions of this criterion have been satisfied.

2. PC A9.3.4 requires that:

1. The proposal should only be permitted where effective warning time and reliable access is available for the evacuation of an area potentially affected by floods, and I am of the view that these are available because:

1. as noted above at [(1)(b)], future residents would have at least 12 hours, and probably more, following a warning to evacuate the Subject Site prior to the effects of a 1:100 ARI event, and a similar timeframe under climate change scenarios modelling. Further, during this time, reliable access would be available into and out of the Subject Site to facilitate evacuation;

2. as noted above at [48(4)], even in circumstances of a PMF event, future residents of the Proposed Development would also have at least 12 hours and possibly more following a warning to evacuate, and during this time reliable access would be available into and out of the Subject Site to facilitate evacuation.

2. evacuation should be consistent with any relevant emergency management plan or flood evacuation strategy where in existence, and I am of the view that it is because:

1. it was confirmed in evidence that, while there is a general plan for the Lake Illawarra area, there is no relevant flood evacuation strategy that has been developed by either the NSW SES, nor by the Respondent Council, that would apply specifically to the Subject Site;

2. the Parties proposed, and agreed, draft conditions of consent filed with the Court at the conclusion of the hearing, require that a specific emergency management plan would be developed by the Applicant for approval by the Respondent should the Applicant’s development application receive consent. This would guide evacuation of the Proposed Development should this be required.

3. PC A9.3.7 requires that Proposed Development must be consistent with ESD principles, and I am of the view that it is because:

1. the principles of ESD, which are provided above at [17], can be summarised as:

1. the precautionary principle;

2. the principle of inter-generational equity;

3. the principle of conservation of biological diversity and ecological integrity; and

4. the principle of improved valuation, pricing and incentive mechanisms—namely, that environmental factors should be included in the valuation of assets and services.

2. having considered the definition of ESD and the nature of the proposed development, as confirmed by expert reports tendered as evidence at the hearing, and consistent with the submissions of the Parties, I am satisfied that the Proposed Development would not significantly impact on the natural environment, including in relation flora and fauna, adjoining properties, as well as in relation to the flow of floodwaters in Horsley Creek, and so is consistent with the principles of ESD because:

1. there are no threats of serious or irreversible environmental damage, and no reasons exist that would result in a postponement of measures to prevent environmental degradation;

2. no aspect of the Proposed Development would affect the health, diversity and productivity of the environment, and so those aspects of the environment would be maintained for the benefit of future generations;

3. the conservation of biological diversity and ecological integrity were a fundamental consideration within the Proposed Development, and it was confirmed at the hearing that it would have no significant impact on these matters, thus ensuring the conservation of biological diversity and ecological integrity; and

4. environmental factors have been included in the assessment of the proposed Development, and so, as a consequence, the valuation of environmental assets and services has also been a matter of consideration in the assessment process.

67. For reasons provided above at [66], I conclude that the Proposed Development is consistent with achievement of the performance criteria within section 9.3 of Appendix 9.

68. Having considered the performance criteria within section 9.3, I am now able assess whether the Proposed Development achieves the relevant objectives (see above at [29(2)(c)]) of s 9.3 of Appendix 9, and my consideration of those is as follows:

1. Objective 2 requires that, if the Applicant’s Proposed Development is a development with high sensitivity to flood risk (e.g. critical public utilities), it is to be sited and designed such that it is subject to no or minimal risk from flooding, and does it have reliable access, which I consider that it is, because:

1. the Proposed Development is for the construction of residential dwellings on the Subject Site. In my assessment, this use is one that does have a high sensitivity to flood risk as the flooding of dwellings on the Subject Site has the potential to present a risk to human life and to the assets of potential residents if it were not sited and designed to mitigate that risk.

2. the Applicant has proposed that dwellings on the Subject Site would be constructed at a level of 3.15m AHD, above the flood planning level of 2.3m AHD plus 0.5m (ie 2.8m AHD).

3. the site has a single access road, Koona Street, which has a sag point some 400m from the Subject Site that does flood and which can affect access to the Subject Site when flooded.

4. as discussed above (see [46] and [47]), the access into and out of the Subject Site via Koona Street is affected by flooding, but I have previously concluded that the siting and design of the Proposed Development is such that the risk from flooding to residents and assets on the Subject Site has been minimised, and in my assessment does it have reliable access in terms of:

1. access to and from the Subject Site leading up to and during a 1:100 ARI flood event;

2. access to and from the Subject Site across a timeframe of at least 12 hours, leading up to and during a 1:100 ARI flood event including a similar period under climate change scenarios for 2050 and 2100, as well as in relation to the PMF flood event;

2. Objective 3 directs a consent authority to allow a proposed development with a lower sensitivity to the flood hazard to be located within the floodplain, subject to appropriate design and siting controls, provided that the potential consequences that could still arise from flooding remain acceptable having regard to the State Government’s Flood Policy and the likely expectations of the community in general, and in relation to which I am satisfied that:

1. the Proposed Development does have appropriate design and siting controls, for the reasons identified above at [66]; and

2. the potential consequences that could still arise from flooding remain acceptable having regard to the State Government’s Flood Policy, because:

1. evacuation from the Subject Site is available for an acceptable period in the circumstances of the 1:100 ARI flood event, including under modelled climate change scenarios in 2050 and 2100, for reasons provided above at [46] and [47]; and

2. evacuation from the Subject Site is available for an acceptable period in the circumstances of a PMF event, and the design of the Proposed Development also would enable potential residents to shelter in place during a PMF event, should that be required.

3. the potential consequences that could still arise from flooding remain acceptable having regard to the likely expectations of the community, because:

1. the Proposed Development will not have any significant impact on the environment as confirmed by the expert ecological reports tendered as evidence during the hearing;

2. the Proposed Development is, in my assessment, consistent with the principles of ESD as confirmed above at [66(3)];

3. the siting and design of the Proposed Development has ensured that any risk to human life or risk to the assets of future residents or the community have been appropriately mitigated through the siting and design of the Proposed Development;

4. the Proposed Development is consistent with relevant provisions of SDCP which, as a policy document adopted by the Respondent Council working on behalf of the community, should reflect the reasonable expectations of the community.

3. Objective 6, which requires that the Proposed Development should minimise the risk to life by ensuring the provision of appropriate access from areas affected by flooding up to extreme events, and which I am satisfied it does for reasons already stated above at [46] and [47].

69. I conclude that, for reasons provided above at [66] and [68], the proposed Development is consistent with both the performance criteria and objectives of Appendix 9 of SDCP.

70. I am also able to conclude, consistent with my proposed approach above (at [63]) that because it does achieve the objects of Appendix 9, the Applicant’s Proposed Development might be considered extraordinarily good, skilled, talented or clever. The Proposed Development is, therefore, representative of an exceptional circumstance satisfying the requirement within section 9.2 of SDCP, in relation to land mapped as a high flood risk precinct, that only in exceptional circumstances will development be permitted in this precinct.

Does the Proposed Development achieve the objects of SDCP Chapter 24 concerning floodplain risk management?

71. The objectives of Chapter 24 of SDCP were identified above at [29(1)].

72. At the hearing, the Parties confirmed that Objectives 4, 7 and 8 of Chapter 24 were the objectives that were in contention between them, and that the other objectives within Chapter 24 were not matters in contention. Consequently, I will address each of Objectives 4, 7 and 8 in turn.

1. Objective 4 provides that a consent authority should reduce the risk to human life and damage to property caused by flooding through controlling development on land affected by potential floods, and in relation to this I find that:

1. the Applicant’s Proposed Development has reduced the risk to human life and damage to property that might arise as a consequence of flooding, and has achieved this through the siting and design of the Proposed Development (see above at [46] and [47]), all of which is proposed to be undertaken on land identified with SDCP as either medium flood risk or high flood risk land; and

2. the Applicant’s Proposed Development therefore achieves this objective.

2. Objective 7 provides that a consent authority should apply a “merit-based approach” to all development decisions which take account of social, economic and ecological as well as flooding considerations, and in relation to this I find that:

1. the Applicant has sited and designed its Proposed Development such that, on a merit-based approach, I have found that it:

1. responds to the flood risk categorisation of the Subject Site such that it demonstrates a extraordinarily skilled, talented, or clever design, and can be considered to have responded to the exceptional circumstances requirements section A9.2 of Appendix 9 within SDCP.

2. achieves the objectives of Chapter 24 and Appendix 9 of SDCP;

3. is consistent with the principles of ecologically sustainable development (see above at [66(3)]); and

2. the Applicant’s Proposed Development achieves this objective.

3. Objective 8 provides that a consent authority should control development and activity within each of the individual floodplains within the LGA having regard to the characteristics and level of information available for each of the floodplains, and in relation to this I find that:

1. the Applicant’s Proposed Development does respond appropriately to the characteristics and level of information available for the floodplains associated the flooding in the Horsley Creek and lake Illawarra catchments; and

2. the Applicant’s Proposed Development achieves this objective.

Conclusion in relation to the achievement of the objects of Appendix 9 and Chapter 24 of SDCP

73. Based on my considerations and findings above at [68] and [72], I conclude that:

1. the Applicant’s Proposed Development does achieve the objects, being the objectives, of Chapter 24 and Appendix 9 of SDCP, notwithstanding its non-compliance with the controls within those parts of SDCP;

2. the Applicant’s Proposed Development is an alternative solution that satisfies the requirements of cl 4.15(3A) of the EP&A Act, and its on-compliance with the controls in those parts of SDCP should not be cause for refusal of the Applicant’s development application; and

3. the Proposed Development’s non-compliance with the controls in either Chapter 24 or Appendix 9 of SDCP, is not a reason for the refusal of consent to the Proposed Development.

74. I note that, while the Proposed Development in this appeal, which is for a low density residential development, differs in nature to the seniors living development approved on the Subject Site by the former Senior Commissioner, my findings above at [73], are consistent with the findings of former Senior Commissioner Roseth in Neate 1 in relation to his assessment of that proposed development with the applicable DCP.

Does the Proposed Development satisfy the provision of cl 6.3 of SLEP?

75. The provisions of cl 6.3 of SLEP were identified above at [23(1)], and opening the Respondent noted that it pressed provisions of 3(a) and 3(c) of this clause. In relation to the provision of cl 6.3(3) of SLEP, I am satisfied that:

1. as concerns the provisions of cl 6.3(3)(a), the Applicant’s proposed Development is compatible with the flood hazard of the land, noting that:

1. as held in other judgments of the Court, including recently Michael Brown Planning Strategies v Wingecarribee Shire Council [2019] NSWLEC 1311, compatibility requires that matter be capable of existing in harmony;

2. the definition of flood hazard differs to that of the flood risk of the land;

3. notwithstanding my comment at [(a)], the flood hazard of the land, identified within the Lake Illawarra and Horsley Park studies, informed the mapping of flood risk on the Subject Site; and

4. I have found that the Proposed Development achieves the objectives of Chapter 24 and Appendix 9 of SDCP in relation to floodplain risk management, and so is, in my assessment, compatible with the flood plain risk associated with the Subject Site; and

5. because the mapping of floodplain risk of the Subject Site is based on the identification of flood hazard, both potential and real, of the Subject Site, I conclude that the Proposed Development is compatible with the flood hazard of the Subject Site.

2. as concerns the provisions of cl 6.3(c), the Applicant’s Proposed Development does incorporate appropriate measures to manage risk to life from flood, including:

1. the siting and design of the Proposed Development (as discussed above at [46] and [47]);

2. as I have previously found that I am satisfied that the Proposed Development, including its construction on a platform at 3.15m AHD, is adequate to manage any risk to life from flood, including during a PMF event, that was confirmed within the Executive Summary of the Horsley Creek Flood Study to be an event with a probability of 1x10-7 (that is a one in ten million probability of occurrence).

3. and, as concerns the remaining provisions of cl 6.3(3) of SLEP:

1. the Applicant’s Proposed Development will not significantly adversely affect flood behaviour resulting in detrimental increases in the potential flood affectation of other development or properties because the Parties agreed that this was not a matter in contention between them at the hearing, and it was agreed that it not significantly adversely affect flood behaviour. Consequently, I can conclude that this provision of cl 6.3 of SLEP is satisfied;

2. the Applicant’s Proposed Development will not significantly adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses, because the Parties agreed that this was not a matter in contention between them at the hearing and I can, therefore, conclude that this provision of cl 6.3 of SLEP is satisfied;

3. The Applicant’s Proposed Development is not likely to result in unsustainable social and economic costs to the community as a consequence of flooding, because I have previously concluded that:

1. the proposed Development achieves the objectives of Chapter 24 and Appendix 9 of SDCP concerning floodplain risk management (see above at [73]), the provisions of which are based on the following documents:

2. Horsley Creek Floodplain Risk Management Study and Plan;

3. Horsley Creek Flood Study;

4. Lake Illawarra Flood Study; and

5. Lake Illawarra Floodplain Risk Management Study.

6. the Proposed Development is consistent with the principles of ESD (see above at [66(3)], which include:

7. the precautionary principle;

8. the principle of inter-generational equity;

9. the principle of conservation of biological diversity and ecological integrity; and

10. the principle of improved valuation, pricing and incentive mechanisms—namely, that environmental factors should be included in the valuation of assets and services.

11. the Proposed Development is consistent with the expectations of the community (see above at [68(2)(c)]).

76. As a consequence of my findings above at [75], I conclude that the Applicant’s Proposed Development is compliant with the provisions of cl 6.3 of SLEP concerning flood management.

77. In relation to this finding, I note the findings of Commissioner Tuor in the matter of Season Group Pty Ltd v Council of the City of Sydney [2016] NSWLEC 1354 (referred to hereafter as ‘Season Group’) in which, when addressing the requirements of cl 7.15(a) and (c) of Sydney Local Environment Plan 2012, the Commissioner noted (at [41]) that:

The management of risk and the compatibility with the flood hazard need to be considered within the context of not only the flood hazard but also the existing risk on the site and within the street.

78. In relation to this, I note that the Respondent Council had raised a concern, shared by its expert, Mr De Clouett, that flooding at two specific sag points distant from the Subject Site, one on Industrial Road and the other on the Princes Highway, were matters of concern that merited consideration in the current appeal, as they had the potential to restrict the evacuation to a major township of future residents of the Subject Site once any such residents had made their way past the Koona Street sag point.

79. Having considered this submission, I do not afford it significant weight in my assessment of the Applicant’s Proposed Development, for reasons consistent with the approach identified by Tuor C in Season Group. That is, the circumstances and risks that would be presented to any residents seeking to evacuate local area near the Subject Site via Industrial Road or Princes Highway would be no different to those existing risks experienced currently by existing residents of Koona Street or Wooroo Street west of the Subject Site.

Does the Proposed Development satisfy other relevant provisions of SLEP, in particular, the provisions of cl 5.5, 6.1, 6.4, 6.5 and 6.9.

Clause 5.5 Development within the coastal zone

80. The provisions of cl 5.5 of SLEP were identified above at [23(2)(a)], and I confirm that I have considered the matters to which I am required to give consideration under subcl 5.5(2), and I am satisfied that:

1. existing public access to and along the coastal foreshore for pedestrians (including persons with a disability) will not be affected by the Applicant’s Proposed Development;

2. the Applicant’s Proposed Development is suitable given its relationship with the surrounding area and its impact on natural scenic quality having taken into account the factors within subcl 5.5(2)(b) of SLEP;

3. the Applicant’s Proposed Development will have no impact on the amenity of the coastal foreshore, including in relation to the factors in subcl 5.5(2)(c);

4. the Applicant’s Proposed Development will, in my assessment, have no significant impact on the visual amenity and scenic qualities of the coast, including on any coastal headlands; and

5. the Applicant’s Proposed Development will, in my assessment, not give rise to any significant cumulative impacts on the coastal catchment, and I note that this matter was not a matter of contention of the Parties in this appeal.

Clause 6.1 Acid Sulfate Soils

81. The provisions of cl 6.1 of SLEP were identified above at [23(3)], and I confirm that I have considered the matters to which I am required to give consideration under subcl 6.1(3), and I am satisfied that:

1. an Acid Sulfate Soils Management Plan is required in respect of the Applicant’s Proposed Development; and

2. The the Applicant has provided an Acid Sulfate Soils Management Plan, prepared by Network Geotechnics and dated 15 November 2017, in satisfaction of the provisions of cl 6.1 of SLEP.

Clause 6.4 Stormwater management

82. The provisions of cl 6.4 of SLEP were identified above at [23(4)]. While the requirements of this clause were not a matter in contention between the Parties, I am satisfied that the Applicant’s Proposed Development:

1. is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water; and

2. does not require on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water; and

3. avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters.

Clause 6.5 Terrestrial Biodiversity

83. The provisions of cl 6.5 of SLEP were identified above at [23(5))],and I confirm that, having reviewed the evidence in this matter, I have considered the matters to which I am required to give consideration under subcl 6.4(3), and I am satisfied that the Applicant’s Proposed Development is designed and sited, and will be managed, to avoid or mitigate any significant adverse environmental impact, including in relation to terrestrial biodiversity.

Clause 6.9 Essential Services

84. The provisions of cl 6.9 of SLEP were identified above at [23(6)], and the availability of essential services during periods when the Subject Site may be affected by flooding was the subject of testimony by the engineering experts which was provided above at [50]. Having considered the evidence of the experts, I prefer the evidence of Mr Faulkner on this point as in my assessment it was detailed in its consideration of the requirements of the Subject Site, and it responded specifically and satisfactorily to concerns raised by Mr De Clouett in his testimony. Consequently, I confirm that, having considered the evidence in this matter, I am satisfied that the services identified within cl 6.9 that are essential for the Proposed Development will be available when required, or adequate arrangements have been made to make them available.

Further considerations

85. The Applicant also drew the Court’s attention to the decision of my learned colleague Bish C in Group HIS Pty Ltd v Inner West Council [2019] NSWLEC 1089, and in which the Commissioner refused consent for a proposed three storey hospital as a consequence of her that the objectives of cl 6.2(1)(a) and 6.2(1)(b) of Ashfield Local Environment Plan 2013 were “not achieved’. However, I consider both the nature of that development, and the circumstances of that case, to be significantly different to the appeal before me such as to make comparison between the decisions unhelpful.

86. More helpful to my mind is a consideration of the judgment of my other learned colleague Dickson C, in the matter of Palm Lake Works Pty Ltd v Ballina Council [2019] NSWLEC 1479, in which the Commissioner found (at [350]) that in the circumstances of that case a shelter in place approach as a response to site inundation was “not unreasonable”. The Commissioner also proposed the imposition of a condition of consent that required preparation of an integrated flood evacuation and emergency management plan that would be submitted to the NSW State Emergency Services (SES), and approved by Council, prior to the issue of a construction certificate for the development.

87. I note that in the appeal before me, the Parties have provided an agreed condition of consent that also requires the preparation and approval of a “Flood Emergency Response Plan” prior to the issue of a construction certificate, as follows:

“37.   Flood Emergency Response Plan

Prior to the issuing of a Construction Certificate, a Flood Emergency Response Plan prepared by a practicing engineer with experience in Floodplain Risk Management must be provided to Council for approval by the Manager Technical Services.

The Plan must include, but should not be limited to the following:

Instructions to follow the directions of the NSW State Emergency Service (SES) during times of flooding and when Severe Weather Warning for Heavy Rainfall are issued by the Bureau of Meteorology to either shelter in place or to evacuate the premises,

Local flood details including; levels, depths, duration, timing, extents,

Dwelling floor levels and their relationship to local flood levels,

Flood refuge areas and safe evacuation routes (both internal and external to site),

Possibility of local roads being closed due to flooding,  

Availability and timeframes for emergency services to be able to access the site,

Emergency service contact information (SES, Police, Ambulance, Hospital etc),

Provision of emergency communications,

Food, water, First Aid, medical supplies, batteries, chargers and other essential supplies for all occupants and visitors if a stay-in-place evacuation strategy is advised by the NSW SES.”

Conclusions

88. Having considered the submissions of the Parties, and the evidence of the engineering experts, I am satisfied that:

1. Notwithstanding the non-compliance of the Applicant’s Proposed Development with the provisions of Chapter 24 and Appendix 9 of SDCP, the Proposed Development is an alternative solution that satisfies the objects, being the objectives, of Chapter 24 and Appendix 9 of SDCP, including the performance criteria identified at A9.3 of Appendix 9;

2. the Applicant’s Proposed Development is compliant with the provisions of cl 6.3 of SLEP concerning flood planning; and

3. the Applicant’s Proposed Development is compliant with the provisions of cl 5.5, 6.1, 6.4, and 6.9 of SLEP, and I have considered the matters within those clauses of SLEP to which I must give consideration as a pre-condition to the grant of consent.

89. Based on these considerations, I have concluded that:

1. The Subject Site is suitable for the Proposed Development;

2. the Proposed Development is in the public interest; and

3. the Applicant’s development application DA 579/2017 for the demolition of existing structures and the construction of 17 two storey dwellings, with nine visitor car parking spaces, at 118 Koona St, Albion Park, should be approved, subject to conditions.

Orders

90. The orders of the Court are:

1. The Applicant is granted leave to amend the development application and to rely on amended plans, including amended landscape plans.

2. The Applicant is to pay the Respondent’s costs thrown away as a result of amending the development application as agreed or assessed under s 8.15(3) of the Environmental Planning and Assessment Act 1979.

3. The appeal is upheld.

4. Development application DA 579/2017, as amended, for demolition of existing structures and construction of 17 two-storey dwelling houses on an elevated pier platform and nine car parking spaces for visitors on an elevated driveway and pier platform, at 118 Koona Street, Albion Park, is determined by the grant of consent, subject to the conditions attached at Annexure ‘A’.

5. The exhibits are returned, except Exhibits B, F, & 5.

……………………….

Michael Chilcott

Commissioner of the Court

Annexure A (415 KB)

**********

Decision last updated: 26 February 2020